Brief Facts
- In this case, the deceased persons were in a love affair that was not approved by the father of the deceased girl and her uncle. On 02.12.1994 both the deceased went missing and on 11.12.1994 their bodies were found hanging on a cashew tree. Their bodies were in a decomposed state and as per the PMR report the cause of death appeared to be asphyxia due to hanging. As per the version of the prosecution, the father of the deceased girl, her uncle, and two others killed the deceased persons and thereafter their bodies were hanged to a cashew tree to give it a shape of suicide.
- The accused persons were convicted for the offence under section 302 read with 34 and section 201 of IPC and were sentenced to life imprisonment. The High Court upheld the conviction of the accused father but acquitted all other persons from the allegations of section 302 IPC.
- The case was based on circumstantial evidence and the extra-judicial confession of one of the co-accused persons.
Issues
- Whether proving homicidal death is an essential ingredient for offence under section 302 IPC?
- Whether the accused can be convicted merely based on the last-seen theory?
- Can the conviction for the offence of murder be made only based on the extra-judicial confession of one of the co-accused, when the High Court has itself found the said extra-judicial confession to be doubtful and un-reliable to convict the other accused persons?
Held
- The Apex Court acquitted the accused father of the deceased girl and ordered his release.
Homicidal death
- To convict an accused under Section 302 IPC the first and foremost aspect to be proved by prosecution is the factum of homicidal death. If the evidence of prosecution falls short of proof of homicidal death of the deceased, and if the possibility of suicidal death could not be ruled out, in the opinion of this court, the appellant-accused could not have been convicted merely based on the theory of “Last seen together”.
Last Seen Theory
- The time gap between the two incidents i.e., the day when Dhansingh saw Chandrapal calling Kanhaiya at his house and the day Kanhaiya’s dead body was found being quite big, it is difficult to connect the present appellant with the alleged crime, more particularly when there is no other clinching and cogent evidence produced by the prosecution.
- The Apex Court relied on the case of Bodhraj and Ors. V. State of J&K, 2002 8 SCC 45 wherein it was held that “The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible…”.
- After relying on other judicial pronouncements, the Apex Court concluded that in the absence of any other links in the chain of circumstantial evidence, the accused cannot be
convicted solely based on “Last seen together.”
Extra-Judicial confession
- As per Section 30 of the Evidence Act, when more persons than one is being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the court may take into consideration such confession as against such other person as well as against the person who makes such confession. However, this court has consistently held that an extra-judicial confession is a weak kind of evidence, and unless it inspires confidence or is fully corroborated by some other evidence of clinching nature, ordinarily conviction for the offence of murder should not be made only on the evidence of extra-judicial confession.
- The High Court, considering the inconsistency between the said two extra-judicial confessions made by the co-accused Videshi, did not find it safe to convict the other accused i.e., Bhagirathi, Mangal Singh and Videshi himself, and the High Court surprisingly considered the said extra judicial confession made by Videshi as an incriminating circumstance against the appellant Chandrapal for convicting him for the offences charged against him. In our opinion, if such a weak piece of evidence of the co-accused Videshi was not duly proved or found trustworthy for holding the other co-accused guilty of murdering the deceased Brinda and Kanhaiya, the High Court could not have used the said evidence against the present appellant to hold him guilty for the alleged offence.
Relevant Para No.
- 11,12, 13, 15 16 & 18